In the matter of PPF Capital Source Ltd. [2020] IECA 63 (11 March 2020)
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Whelan J.
Power J.
Murray J.
BETWEEN/
THE COURT OF APPEAL
CIVIL
Neutral Citation Number: [2020] IECA 63
Record No. 2019/112
IN THE MATTER OF PPF CAPITAL SOURCE LIMITED
AND
IN THE MATTER OF THE COMPANIES ACT 2014
JUDGMENT of Mr. Justice Murray delivered on the 11th day of March 2020
1. On 30 July 2018, PPF Capital Source Limited (‘the company’) was wound up by the High
Court pursuant to the provisions of the Companies Act 2014. Mr. Ken Fennell was
appointed Liquidator. He was replaced as Liquidator by Mr. Myles Kirby pursuant to an
Order of the High Court (O’Moore J.) of 9 December 2019. The winding up order was
made on foot of a petition presented by Global Management Solutions Limited (‘Global’).
Global alleged that it was a creditor of the company.
2. Mr. Stamp was one of the two then directors of the company. Its sole shareholder was
Galaxy Funding Foundation. Mr. Stamp advised the Court that this is a Belize entity
established by him. He contends that he was unaware of the Petition until the Petition
documents were received by him in the post at his home in England, on 3rd August 2018.
They were posted there by the service providers who operated the company’s registered
office on 26 July. This appears to have been seven days after the Petition was received by
those agents. The Petition itself is dated 22 June and was presented to the High Court on
3 July.
3. By the time the papers were received by Mr. Stamp, the winding up order had been
made. Mr. Stamp thereupon issued a notice of motion seeking to annul the winding up
pursuant to s.669 of the Companies Act 2014. That application was grounded upon three
affidavits sworn by him, the first of which was sworn on 29 August, it being supplemented
by affidavits of 31 August 2018 and 8 October 2018. Global responded to the application
via two affidavits sworn by Mr. Martin Boulton on 1 October and 18 October. The
application came for hearing before the High Court (Pilkington J.) on 31 January 2019.
Pilkington J. refused the relief. This appeal is against that order.
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4. Mr. Stamp’s essential case is that the Petition was grounded on a contrived and disputed
debt. He says that this debt was thus used as part of a strategy to frustrate proceedings
brought by the company against a Mr. Bhupinder Singh in the High Court in London. The
background giving rise to this is complex, but the essential facts as alleged by Mr. Stamp
are as follows.
5. The company was engaged in the business of undertaking capital markets transactions.
Mr. Stamp says that in November 2013 the company entered into an agreement with an
entity called Greenmybusiness Limited (now known as Scotmarit Limited) (‘GMB’)
pursuant to which PPF paid $1.5 million to GMB for it to procure a $100M letter of credit
that PPF could monetise. GMB was controlled by Mr. Singh. The letter of credit was not
procured, and the claim is made that Mr. Singh enriched himself by utilising the $1.5M for
his own benefit. Mr. Stamp says that this money was supposed to be protected and was
the subject of a Quistclose Trust. This transaction and alleged misuse of these funds, is
the subject of the proceedings in England to which I have referred. In those proceedings,
essentially, the company alleged that Mr. Singh had engaged in an advance fee fraud.
Those proceedings have the record number and title ‘Claim No : HC-2016-001088
Between PPF Capital Source Limited, Claimant, and Bhupinder Pall Singh and anor.
Defendants’. Since the appeal was first listed in this Court, Mr. Stamp advised the Court,
Mr. Singh has entered bankruptcy in the United Kingdom. While this may mean that the
proceedings taken by the company against him will go no further, Mr. Stamp intends to
pursue recovery of the company’s monies insofar as it can from Mr. Singh and to identify
how and to whom those monies were ultimately transferred. He contends that the
company would have ‘priority’ in the bankruptcy in respect of this claim.
6. The agreement with GMB was followed by a second agreement entered into on 21
January 2014. This was between the company and a separate entity controlled by Mr.
Singh – Lyza Limited (‘Lyza’) - whereby Lyza was to procure a $100M letter of credit. I
will refer to this agreement as ‘the Lyza agreement’. It was Mr. Stamp’s case that no
funds were due to Lyza under this agreement until the letter of credit was obtained. $2M
was to be paid to this end. Mr. Singh, on the other hand, maintained that the Lyza
agreement replaced the GMB agreement and that PPF owed Lyza a further sum of
$500,000 to procure the letter of credit. The relationship between the two agreements is
relevant to an issue in the case before the English Courts.
7. On 9 May 2018, a Deputy Master of the English High Court refused an application by Mr.
Singh for security for costs against PPF in those proceedings. Mr. Stamp places very
heavy reliance upon the judgment of the Deputy Master in that application. He adopts the
position that the decision of the Deputy Master on this application was helpful to him
because, in particular, he says that the Deputy Master considered that the GMB
agreement and the Lyza Agreements were largely the same, but with the significant
difference that no fee was immediately payable by the company on signing. The
statement upon which he relies in this regard appears at paragraph 15 of the Deputy
Master’s decision:
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“… on 21st January 2014 the Claimant entered into another agreement with a
company called Lyza Limited controlled by the First Defendant. This is in substance
a very similar agreement to the GMB agreement providing for Lyza to procure a
letter of credit to the value of $100 million. There was however a significant
difference in that no fee was immediately payable by the Claimant. A fee of $2
million was to be payable but only on receipt of a letter from the bank issuing the
letter of credit stating that it was ready willing and able to do so.”
Emphasis Added.
8. Mr. Stamp contends that were this the correct characterisation of the agreements, the
company could not be said to have owed $500,000 to Lyza.
9. It was Mr. Singh’s contention as recorded in the Deputy Master’s decision, that the GMB
agreement was discharged and replaced by the Lyza agreement. While the Deputy Master
was most careful to observe that the Court was not seeking to shut out Mr. Singh from
putting forward his case as to what exactly was agreed in this regard, and indeed while
he emphasised throughout his decision that all the Court could do at that interlocutory
stage of the application was to form a ‘general impression of where the probabilities lie on
the main issues as matters stand’ , Mr. Stamp says that the Deputy Master concluded
that Mr. Singh’s argument that the Lyza agreement replaced the GMB agreement was
without merit on the evidence presented.
10. Thus, the Deputy Master expressed the view that this defence ‘faces serious difficulties’
(para. 36). He said :
“I also consider that the First Defendant’s defence that the GMB agreement was
discharged and replaced by the agreement with Lyza Limited faces serious
difficulties. As Mr. Casey points out there is nothing in the agreement with Lyza
which in any way suggests that it is anything other than a separate and additional
contract. What I regard as particularly significant here is the provision in that
agreement for payment by the Claimant of $2 million in specified circumstances.
This is on its face inconsistent with the sum of $1.5M already paid by the Claimant
to GMB being treated as part payment of the sum due to Lyza. If that was what
was intended one would have expected the agreement with Lyza to so provide. I
would emphasise that I do not regard this as shutting out the first defendant from
putting forward his case as to what was actually agreed but it does seem to me to
present that case with real problems.”
11. The Deputy Master continues (para. 44):
“Overall it seems to me highly likely that the Claimant will succeed against the First
Defendant on the basis that he procured a breach of contract by GMB in paying
away the money in the GMB bank account. I am not however persuaded that its
case satisfies that test in relation to any of the other ways in which it puts its case
against him …”
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12. The latter reference is to claims of fraud and deceit that were also made in that case.
13. Mr. Stamp relies upon these findings to buttress his view that at the relevant time the
company did not owe Lyza $500,000 or any sum. In this regard, considerable caution is
required. The Deputy Master’s findings are, as I have noted, necessarily qualified. The
matters of fact and law relevant to the merits of the case in issue before him can only be
fully and finally determined at a plenary hearing. He was sceptical of aspects of the
company’s claim, and indeed critical of Mr. Stamp for ‘falling a long way short of meeting
the requirement of candour’ expected of a party resisting an application for security for
costs on the basis that its claim would be stifled by any such order (as he seemingly
sought to do). What can be said, however, is that the analysis in the ruling is helpful to
Mr. Stamp in showing that he had at least a prima facie basis for contending in good faith
that Lyza was not owed anything by the company.
14. This is important because it was the alleged debt due by the company to Lyza that formed
the subject matter of the winding up Petition. Specifically, on 19 January 2018 Lyza
purportedly assigned the alleged debt owed to it by the company, to Global. The
purported assignment (for which the consideration was £100 together with 50% of any
recoveries made in respect of the alleged debt) records the reason for the agreement as
being that ‘the Assignor does not have the skill base to recover the debt and wishes the
Assignee to do so on behalf of the Assignor’. That agreement was signed on behalf of
Global by a Martin Boulton and on behalf of Lyza by Mr. Singh. It predated the statutory
demand served prior to the presentation of the winding up petition by six days. Mr.
Stamp says that Mr. Boulton was struck off as a solicitor in October 2012 in England for
dishonesty and seeks to suggest that his averments fall to be appraised in that light. Mr.
Boulton denies this and allied allegations in non-specific terms. I have disregarded these
claims of Mr. Stamp’s for the purposes of determining this application. What is more
relevant is that Mr. Stamp also says that that Mr. Boulton is working for Mr. Singh. Mr.
Boulton denies that he is working closely with Mr. Singh but elaborates no further on their
relationship.
15. Global was wound up by HMRC on 10 April 2019. The official receiver is on notice of this
appeal but has declined to take any part in it.
16. The essential point made by Mr. Stamp in this application is that the winding up petition
was an abuse of process in circumstances where the issue of whether $500,000 was owed
is a live issue before the English Courts, and where the effect of the winding up will be to
stymie the claim being pursued by the company. He further says that the centre of main
interests of the company for the purposes of Council Regulation (EC) No. 848/2015, is
England as this is where he, the other director and the business of the company were
located.
17. Section 669(1) of the Companies Act 2014 provides as follows:
“At any time after an order for winding up is made, the court –
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(a) on the application of the liquidator or any creditor or contributory, and
(b) on proof to the satisfaction of the court that the order for winding-up ought
to be annulled,
may make an order annulling the winding up on such terms and conditions as the
court thinks fit.”
18. Pilkington J., in refusing Mr. Stamp’s application, concluded that Mr. Stamp had not
established that he was a creditor or contributory of the company, as required by this
provision. In this regard, Mr. Stamp relied upon and exhibited a contract of employment
with the company, on foot of which Mr. Stamp claimed he was owed back salary, he not
having been paid since 2014. He said that while he was initially paid for three months, he
stopped drawing salary when the case against Mr. Singh began. Mr. Stamp said that he
had been working for the benefit of the company since then, that he was incurring
expenses in connection with the litigation, and that he was a creditor to the extent of his
unpaid earnings and those unpaid expenses.
19. This contract of employment was dated 5 June 2013. That was before the company was
incorporated, that occurring on 19 June 2013. Mr. Stamp in his second affidavit averred
that he was to be paid approximately €60,000 a year. In the course of this appeal (in
which Mr. Stamp both represented himself and was unopposed in his application by any
other party), Mr. Stamp tendered to the Court a later version of this agreement, dated 10
October 2013. He has also submitted invoices, and an e-mail from him to the company
dated 8 October 2014, in which he is recorded as directing that ‘all payments’ should be
stopped until he said otherwise, and that he would draw his remuneration ‘when the case
settles against GMB/Singh’.
20. Pilkington J. said the following :
“The only document in support of his entitlement to claim monies is a document of
5th June 2013, which … whilst it purports to be a nomination of Mr. Stamp as a
director of the company, predates the date of incorporation of the company …
… on the basis of the documentation and the arguments advanced before me today
I am not satisfied that Mr. Stamp has properly advanced the position that he’s a
creditor.”
21. The attention of Pilkington J. does not appear to have been drawn to the provisions of
s.45 of the Companies Act 2014. This provides that a contract purporting to be entered
into by a company prior to its formation may be ratified by the company, upon which
ratification the contract is binding on it. The case law is clear that such ratification does
not have to be by express resolution: a company may ratify a contract by treating it as
binding after incorporation, HKN Invest Oy v. Incotrade PVT [1993] 3 IR 152. In this
case, Mr. Stamp averred that he was paid salary for a time, and thereafter ceased to
receive it (although he says that other directors continued to draw their salaries). In my
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view those averments when combined with the pre-incorporation contract exhibited were
sufficient to establish Mr. Stamp as a creditor of the company for the purposes of s.669.
That being so, it is not necessary for this Court to address the additional evidence Mr.
Stamp has sought to adduce establishing that he was a creditor.
22. That leads to the substantive issues presented by the application. Applications under
s.669 or its predecessor – s.234 of the Companies Act 1963 – are rare, and authority is
sparse. In this jurisdiction, the cases have arisen in circumstances where there was a
failure to comply with statutory requirements in connection with the winding up process.
Thus, an analogous jurisdiction was exercised by Carroll J. in Oakthorpe Holdings Limited
[1987] IR 632 in respect of a members’ voluntary winding up where no statutory
declaration of solvency was delivered as required by ss. 256(1) and (2) of the 1963 Act.
The jurisdiction was exercised on similar grounds by Costello J. in Re Favon Investments
Limited [1993] 1 IR 87.
23. The section reflects in its language the consequence of a successful application to show
cause against an adjudication in bankruptcy (Bankruptcy Act 1988 s.16), and in its effect
it mirrors the power in the English insolvency code to stay or sist a winding up order (see
s.147 of the United Kingdom Insolvency Act 1986). While noting the obvious differences
between the terms and context of the various provisions, authorities considering those
analogous powers suggest the following relevant features of the jurisdiction, which seem
to me in any event to flow from the language and purpose of the section.
24. First, the effect of the annulment of a winding-up order is that the winding-up order is
ineffective ab initio. In this respect, it contrasts with an order rescinding the winding up
(insofar as the jurisdiction to rescind such an order continues in Ireland – see Courtney
The Law of Companies (4th Ed. 2016 para. 14.160)). The distinction between rescission
54, (Gloster LJ): ‘rescission terminates the bankruptcy whereas annulment treats the
[Bankruptcy Order] as having never been made’.
25. Second, the application for such an order must be made promptly. Obviously, once the
winding up order is made, the consequence is to effect a significant alteration of the
company’s management and control, and of the entitlements and expectations of the
general body of creditors. An applicant who delays in signalling his intention to seek to
annul the winding up will forgo his entitlement to claim that relief (see Re Ponsford ex
parte Ponsford [1904] 2 KB 704, where a three-month delay was held to be fatal to such
an application).
26. Third, and following from this, the reason the applicant for the relief did not attend in
Court and advance the contention now relied upon in support of annulment will be
important to the exercise of the jurisdiction. Given the import of the order sought, and
the extensive provision made by law to ensure that affected persons are aware of and in
a position to make any relevant submissions at the hearing of a winding-up petition, an
applicant for such relief will have to demonstrate not merely that he was not aware of the
application, but that the reasons he was so unaware are both explained, and excusable.
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27. Fourth, central to the exercise of the jurisdiction is the position and interests of all parties
potentially affected by the order. The importance of this consideration was emphasised in
McGruther v. James Scott Ltd. [2004] SC 514:
“As the granting of a sist will bring to an end, or interrupt, the control over the
management of the company’s affairs exercised by the liquidator, an officer having
ultimate responsibility to the court for his conduct, the court will wish, before such
control is released, to be satisfied that the interests of all parties potentially
affected by any such release are duly considered; there may in some cases also be
a wider public interest to address.”
28. Fifth, finally and most importantly, the statute does not specify any factors to which the
Court should have regard nor the matters which it must disregard, in making an order.
Logically, it seems that central to the jurisdiction are a number of related issues. For a
start, it is hard to see that any order of annulment can be contemplated unless the
applicant establishes that had the grounds on which he relies been advanced at the
hearing of the application, the winding up order would likely have been refused (see
Hoare v. Inland Revenue Commissioners [2002] EWHC 775 at para. 8). However, while
this is a necessary requirement for such an application, it will not always be sufficient.
Considerable weight must be afforded to the necessity for certainty as to the legal efficacy
of a winding up order once made. The law has designed a process intended to ensure that
all parties likely to be affected by the making of such an order are in a position to make
their case at one, and only one, hearing of the matter. While each case will depend very
much on its own facts, and while in a case in which an applicant has a good explanation
for his non-participation in the original hearing, in which he has moved expeditiously, and
in which there is no party that has relied to its detriment upon the fact of the winding up
order, a good ground on which the order would have been refused may suffice, the Court
should be more inclined to make such an order where a strong prima facie case of abuse
of process or sharp practice has been established. Obviously, if it is clear that the
company is insolvent and has creditors other than the original Petitioner, then irrespective
of whether the applicant is correct in the case he makes, it is hard to see that the winding
up order could be annulled save in the most exceptional of circumstances. In this regard,
the starting point should be that the winding up order is lawful, effective and properly
obtained, so that if there are matters on which the Court has doubts it should not annul
(see Re Telescriptor Syndicate Ltd. [1903] 2 Ch 174). The Court should refuse to annul if
there are ‘shady practices or unattractive incidents which would disable the applicants
from having the company restored to their hands (Re Lowston Ltd. [1991] BCLC 570,
573).
29. Applying these considerations to this case, I have concluded that the Court should annul
the winding up order.
30. Insofar as the position of the applicant, and the question of whether his explanation for
not attending the initial application for the winding up order, is concerned, I believe that
in all the circumstances the explanation he provides is adequate, if less than ideal. In that
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regard, while Mr. Stamp attaches significance to the fact that no letter before action was
received by PPF from GMSL or Lyza Limited, no such letter is required in law. What is
required is a statutory demand. The evidence before the High Court was that this
statutory demand was served on 25 January 2018. Specifically, the affidavits delivered at
the time of the application to wind up the company disclose that a statutory demand was
left at the company’s then registered office on 25 January, that this was handed to a
Christine Murphy, and that an acknowledgement of receipt was provided by her. This is
stated in the affidavit of Mr. Hyland of Walkers Solicitors. Before this Court, Mr. Stamp
expressed himself unaware of this (although a similar point is made in the first affidavit of
Mr. Boulton). Mr. Stamp has advised the Court that he had understood from the papers
that the demand had been served at the company’s previous registered office at 12
Merrion Square.
31. What is more important, however, is that the evidence clearly establishes that Mr. Stamp
did not receive the winding up papers until after the hearing. It is clear that the winding
up papers were served at the registered office of the company on 19 July. The evidence of
Mr. Ajorque of Mason Hayes and Curran is that he attended the same premises on that
date, and that the representatives of Kendlebell (the company agents operating from that
address) advised that they did not know where the offices of the company were but left
the papers at the post box at the entrance to that property later that afternoon. It is
unclear why this happened. However, Mr Stamp is emphatic that these were not
despatched to him until 26 July, and not received until 3 August.
32. Overall, the position on the evidence in relation to these matters is not entirely
satisfactory. Mr. Stamp could, and should, have ascertained and explained to the Court
how it came about that the demand was not delivered to him. He could, and should, have
ascertained and explained to the Court how papers delivered to the company agents on
19 July were not despatched to him until one week later, in the context of a Court
application to take place on 30 July.
33. However, the fact remains is that the evidence before the Court is that Mr. Stamp did not
know of the application, and I find his repeated assertion that had he known of it he
would have attended at the hearing, convincing. He avers that had he known of the
statutory demand, he would have immediately challenged it on the grounds that there is
no debt due to Lyza Limited and never has been. Whether or not the premise is correct,
his actions throughout have reflected that belief. For him to have ignored a statutory
demand that would have undermined the case against Mr. Singh would have made no
sense having regard to his personal investment in that action.
34. Insofar as the question arises as to whether the applicant moved with sufficient
promptitude when hearing of the petition, the motion issued on 29 August. In the
circumstances, the period that elapsed does not appear to be unreasonable. The time that
did pass is explained in the affidavit evidence by reference to attempts made to obtain
legal assistance in this jurisdiction. I believe this to be a reasonable explanation for the
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period that elapsed between his learning of the winding-up order, and the issuing of his
motion.
35. As regards the position of third parties, it appears clear that nothing substantive has
happened in the liquidation since the winding up order. This is attributed in the papers to
the fact of this application. The original liquidator appointed by the Court has, as I have
noted, been replaced, and neither he nor the present liquidator have chosen to oppose
the application. The Court has been advised of no prejudice to any party (apart from
Global) if the application to annul is granted. Global itself has been wound up, and the
Official Receiver representing it is not opposed to the application. In letters to the Court
dated 27 June 2019 and 13 November 2019, the Official Receiver’s Office has confirmed
that he is adopting a neutral stance on the application. This is subject to the condition
that no costs order is sought against either Global or the Official Receiver. No other
creditors whose interests might be affected by the order being granted, have been
identified.
36. The next question arises from the basis on which the application is brought. Here, a
number of features of the application are relevant. It certainly seems to me that had Mr.
Stamp presented to the High Court at the time of the winding up application the evidence
and arguments he advances to this Court, the Court could not and would not have wound
up the company. The debt in issue was disputed on what are clearly bona fide grounds.
More fundamentally, the debt is alleged to have been contrived, and it is claimed that it
was assigned and deployed to wind up the company for the purposes of spancelling
proceedings in England. The circumstances in which, and reasons why, it is alleged that
this is being done sustain a prima facie case to that effect.
37. A similar issue was addressed in Re Genport Limited [1996] IEHC 34 in the context of a
winding up application, where it was made clear by the Court that if a prima facie case is
made out that a petition is not for the benefit of a class of creditors to which the
Petitioner belongs, and if a case is made out that the Petition is for an ulterior object, the
burden shifts to the petitioner to establish that the winding up is for the benefit of those
creditors. That conclusion followed from the decision of the Supreme Court in Re Bula
Limited [1990] 1 IR 440 and, in particular, the comments of McCarthy J. (at p.448):
“… a creditor is prima facie entitled to his order so as to shift the initial burden to
those who oppose the winding-up; the petitioner does not have to demonstrate
positively that an order for winding-up is for the benefit of the class of creditors to
which he belongs, but, if issue is joined on the matter, and a case made that the
petition is not for that purpose but for an ulterior, though not in itself improper
object, then the burden shifts back to the petitioner”.
38. Although these comments were made in the context of the hearing of a winding-up
Petition, similar considerations must apply to this application, not least of all in a situation
in which the purpose alleged by Mr. Stamp is not merely ulterior, but also improper. Mr.
Stamp has laid out in considerable detail the precise reasons he says there is no debt
owed by the company to Lyza and has presented a coherent basis for his contention that
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the assignment of the Lyza debt to Global and subsequent presentation of the winding up
Petition was undertaken for the purposes of disrupting the claim then being actively
pursued before the English Courts. The fact that Global has not addressed the claims
made by Mr. Stamp around the enforceability of the debt and subsequent assignment in
any proper way in the affidavits tendered on its behalf in connection with this application,
is as striking as it is surprising. Notwithstanding the clear case advanced by Mr. Stamp in
his affidavits to this effect, nothing of substance has been said in response.
39. Specifically, apart from blanket denials and the raising of queries as to whether Mr.
Stamp was a creditor or contributory of the company, the suggestion that there was some
irregularity around the company’s use of 12 Merrion Square as a registered office, the
identification of other companies related to the company which have been dissolved or
wound up, Mr. Boulton (who swore these affidavits on behalf of Global) has not engaged
with these allegations. In particular:
(a) He provides no explanation of any kind as to why the Lyza assignment was
undertaken, nor of what (beyond an uninformative denial) the response of Global is
to the claim that this assignment and the subsequent Petition was undertaken for
the purposes of spancelling the proceedings in England;
(b) He does not address how the debt allegedly arising from the Lyza assignment is
valid and effective having regard to the contentions advanced by Mr. Stamp and
accepted at least on a prima facie basis by the Deputy Master of the English High
Court. The totality of his response to Mr. Stamp’s averments in this regard is the
statement in Mr. Boulton’s affidavit of 1 October 2018 that ‘this position is totally
misconceived’, that the proceedings ‘have no bearing on the matter’ and the –
cryptic – comment that:
“It is factually incorrect to state that the petition was brought to avoid
negative consequences in live proceedings and to suggest otherwise is
contrary to the provisions of the Act set out above.”
(c) In the same affidavit Mr. Boulton adopts the position that the English litigation is
(for reasons which are also unexplained) without merit, suggesting some familiarity
with the proceedings themselves. If Global was aware of these proceedings at the
time of the hearing of the winding up Petition, it knew (a) that the Lyza debt was
disputed, (b) that the circumstances surrounding the incurring of that debt were to
fall for consideration (at least collaterally) in the proceedings in England and (c)
that an officer of the English High Court had expressed the view that the defence to
that claim insofar as based upon the agreement faced ‘serious difficulties’. If it was
not aware of any or all of these matters at the time of the presentation of the
Petition to the High Court, it is most surprising that Mr. Boulton makes no averment
to this effect in the affidavits sworn in connection with this application. It does not
appear that the Court was advised of any of these matters at the time the winding-
up order was made.
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(d) Mr. Boulton provides no information whatsoever as to his relationship with Mr.
Singh. This is remarkable, given the allegations made in Mr. Stamp’s affidavit of 8
October 2018 that Mr. Boulton had been working for Mr. Singh since 2014 to
undermine the company’s case against Mr. Singh in respect of the alleged advance
fee fraud. Absolutely nothing is said by Mr. Boulton in response to this claim
beyond a bland denial that he has been ‘working closely with Mr. Singh’.
(e) His response to the claim that the winding up prevents the proceedings in England
from proceeding – that the liquidator can pursue them if appropriate – lacks any
reality in the context of a company with limited assets. Mr. Stamp has made it clear
that it is his intention to pursue the proceedings on its behalf. In any event, it does
not answer the basic question facing the Court here. The point being made by Mr.
Stamp is that the company should never have been wound up in the first place.
40. I also note that Mr. Stamp’s claims that the centre of main interests of the company was
at all times in the United Kingdom are not addressed in this affidavit. Having regard to
the other conclusions I have reached on the evidence, it is not necessary for me to deal
with this aspect of the application.
41. In Mr. Stamp’s original affidavit, he said that the value of the company’s claims (including
the claim against Mr. Singh) was in the region of US$2.6M, excluding consequential losses
which he estimates in the sum of US$5M. Critically, he averred that as of the date of the
liquidation, PPF had no liabilities. Mr. Boulton in his replying evidence asserts that the
company is in any event insolvent. He points to the financial statements of the company
for the period from 19 June 2013 to 18 December 2014, and avers that the balance sheet
of the company highlights a net liability of $2,039,351. Mr. Stamp responded asserting
that the company has a positive cash balance, and a significant contingent asset in its
case against Mr. Singh. He avers that the company does not have any other creditors as
the bonds it issued do not cause a liability to the company until such time as it has
sufficient balance sheet assets to repay them. This affidavit was not responded to by the
petitioner. The evidence before the Court on the issue of whether there are creditors
other than Global who would be adversely affected by the winding up order being
annulled is, at best, inconclusive. If there are such creditors, they of course retain the
entitlement to petition to wind up the company should they wish to do so, and to that end
I will direct that the fact of the making of this Order be duly advertised.
42. In those circumstances, I would accede to the application to annul the winding up order. I
believe that Mr. Stamp has provided an adequate explanation for his failure to attend the
original winding up hearing. I am satisfied, for the reasons explained above, that had he
done so he would have made a case consequent upon which the company would not have
been wound up. I believe that the allegation he makes in these proceedings goes beyond
the mere claim that the debt on foot of which the Petition was pursued was disputed on
bona fide grounds, but that he has laid before the Court credible evidence supporting his
contention that the winding up of the company was undertaken for ulterior purposes
which, if established conclusively in evidence, would represent an abuse of the process of
Page 12 ⇓
the Court. Those allegations having been made, they have not been convincingly or
adequately refuted. In circumstances in which neither the original Petitioner nor the
Liquidator are opposing the application, in which no other party has been identified who
would be prejudiced by this order, and in a context where nothing has been done
(consequent upon this application) to move the liquidation along since the making of the
winding up order, it is in my view appropriate to grant the relief claimed.
43. Mr. Stamp is directed to forthwith advise the Companies Registration Office of the Order
of this Court. Subject to hearing the Liquidator, the books, records and seals of the
company should be furnished to Mr. Stamp. The annulment of the winding up Order
should be advertised in two national newspapers circulating in the State. The Court will
require an undertaking from Mr. Stamp that this will be done within five days of this
judgment.
Result: Allow appeal
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